Can I legally prevent people from putting flyers under my door or on my windshield?

September 25, 2007

Dear Straight Dope:

I just read with interest your discourse on the ins and outs of mailbox ownership and rights thereto. My question is this: if a private citizen cannot legally put something in my mailbox, what right hath he to come onto my property and shove it under my door, or for that matter put it on the windshield of my car? The car flyer problem has annoyed me for years - why do I have to dispose of some wad of paper that some jerk has stuck under my wipers? Why can't he keep his hands off my car? Is there a way to make him pay for his transgressions?

— Bob, Nantucket, Massachusetts

SDSTAFF Gfactor replies:

First of all, Bob, as the other article explains, the delivery of mail enjoys a special degree of protection under the law, so the mailbox analogy doesn't really hold. With that understood: no, the jerk doesn't have a right to come onto your property if you tell him not to, but the First Amendment often prevents the government from forbidding such jerks to try and communicate with you unless you explicitly say no. As the Supreme Court noted in Martin v. City of Struthers,

For centuries it has been a common practice in this and other countries for persons not specifically invited to go from home to home and knock on doors or ring doorbells to communicate ideas to the occupants or to invite them to political, religious, or other kinds of public meetings. Whether such visiting shall be permitted has in general been deemed to depend upon the will of the individual master of each household, and not upon the determination of the community.

So the key is that you've got to make it clear they're not welcome. Because, as the Court has acknowledged elsewhere, typically "the knocker on the front door is treated as an invitation or license to attempt an entry[.]"

It seems intuitive that the First Amendment would protect one's right to enter private property in instances like this. For the most part, though, it doesn't. One of the most powerful rights held by an owner of real property is the right to exclude others. If you don't want someone on your property, you can keep them out, but again the onus is on you to make such wishes clear.

The Supreme Court's track record with this kind of First Amendment case might well confuse the man in the street (who under most circumstances has every right to be there), so let's review some examples:

1. In Martin, cited above, the Court invalidated an ordinance that prohibited anyone from "distributing handbills, circulars or other advertisements" at private residences.

2. But eight years later the Court approved an ordinance that prohibited salesmen from visiting private residences without having been invited by an owner or occupant. This was a so-called "Green River" ordinance, named for the city of Green River, Wyoming. The city's Web site proudly recounts the story behind the statute (railroad workers on the night shift got annoyed at door-to-door salesmen disrupting their daytime sleep and demanded something be done about it) and proclaims the ordinance "still alive and well." Later cases, however, have called this holding into question because it relied on now-outdated First Amendment doctrine concerning commercial speech.

3. Around the same time, though, the Court invalidated a conviction of a Jehovah's witness who was told to leave a private sidewalk in a company town and also a similar conviction in a town owned by the federal government (Hondo Navigation Village, Texas, created by the government as a residence for wartime defense workers).

Some lower courts have joined the Martin court in rejecting provisions that criminalize the distribution of unsolicited free newspapers or advertisers. Green River pride notwithstanding, in Miller v. City of Laramie the Wyoming Supreme Court invalidated the conviction of a free weekly newspaper distributor for distributing papers to the homes of residents, noting "the burden placed on the citizens of Laramie and private property in that city was exceedingly trivial," and that "even a solid majority may not extend its prohibitions in such a manner as to violate the United States or the Wyoming Constitutions." In Statesboro Publishing Co. v. City of Sylvania the Georgia Supreme Court struck down an ordinance banning the distribution of "any handbill or printed or written material by placing, or causing the same to be placed, in any yards, driveways, walkways or porches of any structure." And in Ad World, Inc. v. Township of Doylestown, the United States Court of Appeals for the Third Circuit struck down an ordinance that prohibited distribution of advertising material at a residence, on private property, or in a mailbox unless the resident or owner requests the material or consents to its distribution.

What's missing here? None of the cases say you have to let solicitors onto your property, or permit them to stay. That's because you don't. "Traditionally the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off," said the Court in the Jehovah's witness case above. In Central Hardware v. NLRB the Court drew a distinction between private property that serves some of the functions of public space (e.g., the common areas in a shopping mall) and private property that's public only in the sense that people aren't physically barred from entering it. As the ruling explained:

Before an owner of private property can be subjected to the commands of the First and Fourteenth Amendments the privately owned property must assume to some significant degree the functional attributes of public property devoted to public use.

I'm guessing that doesn't sound like your house.

In many jurisdictions, failure to leave private property after the owner has made it clear the visit is unwelcome is criminal trespass. Some make it a crime to knock on the door of a home that displays a sign that says "No Solicitors" or something similar. If a solicitor were especially pesky, you could sue for damages and an injunction, although then the issue would be drifting away from straight-up trespassing and toward harassment. But even if you've suffered no real harm from the trespass, you can get nominal damages. The Idaho Supreme Court recently explained that such damages constitute "a 'trifling sum' awarded to 'demonstrate, symbolically, that the plaintiff’s person or property has been violated.'"

Many jurisdictions also recognize that a property owner has the right to use reasonable force to remove trespassers who refuse to leave after being asked. Notice I said reasonable force – brandishing a weapon is generally frowned on in cases like this, and drawing blood is out of the question.

What about your car? Same deal, pretty much. Nobody has a legal right to touch your car. (Well, some people do: emergency workers, city tow truck operators, etc.) Just like with your house, most jurisdictions recognize a right to use reasonable force to protect personal property. But don't overdo it. Reasonable force would likely be minimal in this context – the threat to your property is somewhere between minor and nonexistent, and your personal safety isn't in jeopardy. And of course this assumes you catch the person in the act of putting the flyer on the car.

Beyond that, legal remedies are scarce. Courts call interference with personal property that doesn't deprive the owner of possession "trespass to chattel" or "trespass to personalty." But in this kind of case, you usually can't get nominal damages – you've got to show that the trespasser actually damaged the property. While you might be able to get an injunction, it probably wouldn't be worth much. So unless you're prepared to stake out your own car until the flyer guy comes back, then argue in court that shreds of copier paper have reduced the effectiveness of your wiper blades, it's possible that he may never be brought to justice.

Some jurisdictions actually have criminal provisions to deal with people who leave flyers on cars. For example, in 2001 the Ohio Court of Appeals affirmed a conviction under a ordinance in the city of Mount Vernon that barred the placement of printed materials (including handbills) on any privately owned "structure or thing" (including vehicles) without the owner's permission; the defendant had printed up flyers about his exwife and stuck them on windshields in various parking lots. The Ohio court didn't address any Constitutional challenges to the ordinance, though; if the other cases that did are any indication, the law probably wouldn't hold up.

— Gfactor

Staff Reports are written by the Straight Dope Science Advisory Board, Cecil's online auxiliary. Though the SDSAB does its best, these columns are edited by Ed Zotti, not Cecil, so accuracywise you'd better keep your fingers crossed.